Thursday, January 16, 2014

They Can't Say They Weren't Warned

It's called "air hunger," an extreme form of dsypnea, and it's pretty much what it sounds like. The person can't breathe, is terrified by the inability, gasps, struggles, suffers acute agony. It's what an expert anesthesiologist told Judge Gregory Frost that Dennis McGuire might experience when the good people of the State of Ohio put McGuire to death with intravenous doses of midazolam and hydromorphone, a combination never before used anywhere in an execution.Frost said, sure, maybe. It's an experiment. But he wasn't convinced the risk was severe enough to stop it.Of course, the 8th Amendment prohibits cruel and unusual punishment. On the other hand, as AP reporter Andrew Welsh-Huggins reported the other day,

Not, at least according to the 8th Amendment as interpreted by the Supreme Court. The thing is, Ohio (and only Ohio, by the way) says you are entitled to just that. Here, omitting a bit at the beginning that changes nothing and adding italics for emphasis, is Section 2949.22(A) of the Ohio Revised Code:

[A] death sentence shall be executed by causing the application to the person, upon whom the sentence was imposed, of a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death. The application of the drug or combination of drugs shall be continued until the person is dead. The warden of the correctional institution in which the sentence is to be executed or another person selected by the director of rehabilitation and correction shall ensure that the death sentence is executed.

As an assistant attorney general grudgingly conceded in court when we were litigating that section in another lethal injection case some years ago, "painlessly" means without pain. Thing is, nobody takes that provision seriously. And in any event the issues before Judge Frost were what the U.S. Constitution allows.

And so they killed Dennis McGuire this morning. And it was pretty much what they'd been told. Alan Johnson, a reporter for the Columbus Dispatch, watched the execution and described what the witnesses saw.

Dennis McGuire struggled, repeatedly gasping loudly for air and making snorting and choking sounds, before succumbing to a new two-drug execution method today. . . .After being injected at 10:29 a.m., about four minutes later McGuire started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes. His chest heaved and his left fist clinched as deep, snorting sounds emanated from his mouth. However, for the last several minutes before he was pronounced dead, he was still.

It was 10:53 when they pronounced McGuire dead. Allen Bohnert, one of McGuire's lawyers, said it was a

failed, agonizing experiment by the state of Ohio. . . . The people of the state of Ohio should be appalled by what was done in their name.

What Allen didn't say, but what he well might have, is

Told you so.

Ohio has, of course, an unmatched track record of incompetence at executions. It took nearly 90 minutes to kill Joe Clark, close to 2 hours to kill Chris Newton, and of course they failed to kill Rommell Broom.But kill we will.No state outside the south has executed so many as we have here. It's not even close. And we're going strong. As I wrote yesterday, we've got folks lined up for the needle through January 2016.Enthusiasm and incompetence. A troubling combination of traits. But that's us.While he was being killed this morning, Dennis McGuire's wife and children held hands and sobbed. Joy Stewart's family said justice was served.If that's justice, I don't want any part of it.

Not just on US news sites - I have read similar reports on UK and Russian sites too wondering how this was allowed to happen.Shameful, but even more shameful are some of the public comments in response to the US media coverage, suggesting that this is how executions should be. How did we ever get to the stage of equating justice with a slow and painful death? Something has to change and Ohio/Governor Kasich/Judge Frost have some soul searching to do, but you would have thought that after the previous incompetent and failed executions and look where we have sunk to now.

The reason people wanted to see him die a slow painful death is because he RAPED AND MURDERED A PREGNANT WOMAN. If you had a quarter of the empathy for Joy Stewart that you have for Dennis McGuire this would be obvious.

Do you have a wife or a daughter? Try and imagine them meeting the end that Joy Stewart met. Not the standard disclaimer 'of course it was a terrible crime', but actually think it through. Spend as much time on the specifics of what happened and how much terror and agony she must have experienced as you have on the experience of McGuire.

That's why people aren't particularly bothered by how he met his end.

There are lots of good reasons to abolish the death penalty. The notion that McGuire didn't have this coming isn't one of them.

Has everyone, even in Ohio, forgotten Romell Broom? Having protested his innocence for 25 years and asked repeatedly for a change of lawyers and an independent DNA test, he was subjected to a two-hour ordeal with over 100 insertions of the needle, before the execution was deemed to have failed. He is still on Death Row, still asking for a new lawyer, still asking for someone to listen, with two non-matching DNA tests in his name, and police reports in which details change from one report to the next, and witnesses who at first could not be sure whom they had seen suddenly becoming able to identify the man pointed out to them. His official online crime record has errors which have not been corrected - one with a crime date when he was actually in prison.For anyone still believing it's justice to kill killers, what about those who didn't do it? Will the State's voters risk killing them as well - or burying them alive in prison for the rest of their lives?http://youtu.be/7Fi3EOVCvHY

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.